The Defense Rests; Prop 8 Trial


The trial is over for now. In the near future, the judge will call both sides to give their closing arguments. He wants to familiarize himself with all of the documents he’s been given. It’s a lot.

Today we learned even more about the defense witness Mr. Blankenhorn, now being called Blankenhorny thanks to a particularly saucy response to one of Boies questions.

Boies: Go to your third rule, sex
Blackenhorn: That is an interesting subject
Boies: I don’t want to fall into the trap of making sex boring
Blackenhorn: Maybe together we can make it interesting
(COURTROOM DOUBLED OVER IN LAUGHTER)

I’m fairly certain that witnesses making sexual overtures to the opposing council is generally frowned upon.  We also learned that the lead witness for the defense thinks that same sex marriage is good for couples and children, he just thinks it’d make “normal couples” unhappy.  And that Judge Walker is growing impatient with how obnoxious the defense witnesses are.

Q: I am going to try to make things go a little better today, good morning Mr Blankenhorn. Do you believe marriage is public good?
A: Yes I do
Q: And you believe that children benefit from their parents being married?
A: yes certainly
Q: And do you believe that children of G&L couples would benefit from their parents being married?
A: Well, I do think it would be better for them
Q: You absolutely believe it would be better for children of same sex couples to have married parents?
A: Yes
Q: (reads from B’s book) You say the rights of G&L should take second place to the institution of marriage?
A: Yes, I was trying to say — I was saying — I meant that I accepted the validity of the arguments of those who disagreed with me, but my answer is yes.
Q: “With some anguish I would choose marriage as a public good over the rights of same sex couples.”
A: Yes, and the whole purpose of my book –
Q: I’m not really interested in the purp –
A: I am exploring in these sentences the context of my arguments. I want you to understand –
Judge: LET’S HAVE A QUESTION AND AN ANSWER

And the Judge even felt compelled to give him a lecture.

Q: You may important points to make –
A: I do actually
Q: But this is not a debate…
A: I’m not trying to debate
Q: Your honor, please instruct the witness to listen to the questions.
WALKER: One thing we say to juries about expert witnesses is to listen to the witness, including the DEMEANOR of the witness, sometimes gauged by his responsiveness to questions. Because I am sure you would not want your demeanor to be a negative while you are on the stand, so please answer Mr Boies questions as he asks them. Your counsel will have a chance to elicit further discussion during redirect, but please answer responsively.

And in case you’re thinking one Mr. Blankenhorn didn’t deserve it, here’s an example of his belligerence.

Q: I want to pursue whether polygamous marriages are consistent with your so-called rule of two –
A: We’re down to so-called?
Q: Well let me ask you question. If a man has five wives –
A: No he has five marriages, each is one man one woman
Q: So is that consistent with your rule of two?
A: Scholars say yes
Q: You are transmitting the words of scholars?
A: You are putting words in my mouth
Q: No I am not
A: Yes I think you are
Q: Okay let’s look at your deposition
A: Well I was trying to base my arguments on scholarship. Other scholars have other views. Ethnographic scholars have made these arguments –
Q: Well I am just addressing whether I put words in your mouth. Just read page 300, you are basing your analysis on highly regarded scholars –
A: THERE’S YOUR MOMENT, I SAID I AM A TRANSMITTER. GOTCHA! THIS IS YOUR MOMENT, I GUESS. If I may say it in my own words
Q: Let me read what you said: “I am not making things up on my own, these are not my own conclusions, I AM A TRANSMITTER OF OTHERS” VIEWS. Did you give that testimony under oath at your deposition?
A: Yes

We also learned that the so called expert had read almost no literature about the subject.

Q: Last three pages are a series of references, see that?
A: Yes
Q: This is a long list, glancing at it, have you rest most or not most?
A By most do you read 50%
Q: Trying to determine whether its easier to list those you have or haven’t, which is faster
A: Have not read at least 51% of these
Q: then tell me what you have NOT read.
A: (deep, deep sigh) Most of these I have not read.

WALKER: Is the question “read” or “not read?”

Q: Read, your honor.
A: Estrich, Goodridge, Johnson, I think. I think those few are the ones I have read.
Q Did you read both of the Estrich?
A Just his book
Q: You’ve read four or perhaps five of the forty listed references here?
A: That’s right

This is how the plaintiffs finished up.  The defense asked about 5 questions before resting.  I think they knew there was nothing they could say that would make it better.

BO: There’s something here called an abstract. You are familiar with what an abstract is, are you not?
DB: Of course.
BO: Reads that children of same sex couples no different in developmental outcome that children of heterosexual couples. Do you know of this study and other such studies?
DB: Yes.
BO: There’s no singularly accepted universal definition of marriage? Marriage is constantly evolving?
DB: Yes sir. I wrote those words in my book.
Boies: No further questions, your honor.

And the judge continued being classy.

WALKER: I want to thank the attorneys for pleading, fine work, many younger lawyers in the case here in the courtroom and behind the scenes, you old hands should take great pride and pleasure in their work. You have done a wonderful job on an extraordinary case. I want to congratulate you for the fine work you have done here. Thank you.

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